Orobor v The Director of Public Prosecution
| Jurisdiction | Ireland |
| Judge | Ms Justice Miriam O'Regan |
| Judgment Date | 04 July 2023 |
| Neutral Citation | [2023] IEHC 384 |
| Court | High Court |
| Docket Number | [Record No. 2021/333JR] |
[2023] IEHC 384
[Record No. 2021/333JR]
THE HIGH COURT
JUDGMENT of Ms Justice Miriam O'Regan delivered on 4th July 2023 .
. In these proceedings the applicant is seeking to prevent further prosecution of an offence against him under s.3 of the Non-Fatal Offences Against the Person Act 1997 as set out in charge sheet no. 22071174. The alleged offence is to the effect that he, together with two other individuals, on 28 May 2017 in Athy, County Kildare assaulted a third party (hereinafter “the complainant”) causing him harm contrary to s.3 aforesaid which left the injured party with a black eye, a split lip and a swollen head.
. The applicant was born on 1 January 2001 and accordingly was 16 years and 4 months at the date of the incident. He obtained his majority on 1 January 2019. The applicant first appeared before the District Court on foot of the charge sheet on 23 February 2021. He is the only individual charged with the offence in circumstances where one of the other individuals cannot be located and the third individual was admitted to the juvenile liaison programme.
Although an offence under s.3 aforesaid can carry with it a penalty of up to five years imprisonment, in this matter both the District Court and the respondent have agreed that the matter can proceed in the District Court, consequently there is now a cap of one year in respect of the potential incarceration of the applicant.
The applicant's claim in damages in the event that prohibition is not granted has been withdrawn. Furthermore, although it was argued that the charging of the applicant in the instant circumstances amounts to an abuse of process having regard to the rule in Henderson v Henderson [1843] 3 HARE 100, it has been acknowledged on behalf of the applicant that the rule is more applicable to civil cases. The nearest comparable in relation to criminal cases being that of oppressiveness by reason of successive trials as against the accused.
. In the events, briefly, the applicant's case is to the effect that by reason of culpable prosecutorial delay on the part of the respondent the applicant has lost the benefit of the protections afforded to a child under the Children's Act 2001 and in the circumstances there has been a breach of the applicant's right to an expeditious trial.
Insofar as the Children's Act is concerned the following safeguards have been lost:-
(a) right of anonymity (s.93(1)(a));
(b) right under s.96 whereby the sentence or penalty imposed would take the least restrictive form with the period of detention being imposed only as a measure of last resort; and
(c) the availability of a probation and welfare officer report in the event that community sanction potential was considered the appropriate penalty.
In respect of the period post 1 January 2019 when the applicant turned 18 years it is argued that the prosecutorial delay thereafter gave rise to prejudice by reason of the inability of the applicant to get on with his life and put this incident behind him.
. The parties are in agreement that the Court's task is first to identify if there is blameworthy prosecutorial delay in the matter. In such event, the Court is then obliged to conduct a balancing exercise to determine if there is something additional to the delay itself to outweigh the public interest in the prosecution of serious offences.
The matters to be taken into account in any necessary balancing exercise would include but not be limited to the length of the delay, the age of the accused at the time of the alleged offence, the seriousness of the charge, the complexity of the case, the nature of any prejudice relied on and all other relevant facts and circumstances ( Donoghue v DPP [2014] 2 IR 762).
. In BF v The Director of Public Prosecutions [2001] 1 IR 656, Geoghegan J indicated that where a criminal offence is alleged against a child there is a special duty on the state authorities over and above the normal duty of expedition to ensure an expeditious trial. This too must be weighed in the balance in the event of a balancing exercise.
. Leave to maintain the within proceedings and amend the initial statement of grounds was granted on 23 April 2021. At that time the applicant's address was the Midlands Prison and his solicitor swore the grounding affidavit bearing date 15 April 2021. The only affidavit furnished herein by the applicant is that of 9 April 2021 being an affidavit of verification of the content of the grounding affidavit of his solicitor Ms McManus.
. Although in para. 2 of the statement of grounds it is suggested that the culpable prosecutorial delay has given rise to a real and unavoidable risk of an unfair trial, however this line of prejudice was not pursued in submissions.
. In the grounding affidavit of Ms McManus aforesaid at para. 5 it is recorded that on 23 February 2021, when the matter came before the District Court, the district judge enquired as to the reason for the delay and the prosecuting member stated that this delay was not in any way attributable to the applicant. This averment has not been countered in the affidavit of Sergeant Paul Daly of 12 November 2021 in support of the statement of opposition. Ms McManus states that she was instructed that the applicant was separately prosecuted and effectively acquitted of the charge arising from the same event which had been finalised in Athy District Court on 10 September 2019.
At para. 8 of the grounding affidavit, Ms McManus states that in fact the allegation of assault on a Ms M was ultimately struck out for want of prosecution.
In this regard, it is argued by the respondent that the applicant was the only accused involved in the Ms M assault, which resulted in a speedier conclusion of the investigation and therefore could not be considered the same event notwithstanding that the alleged assault on Ms M occurred on the same evening.
In para. 9 of the grounding affidavit, Ms McManus indicates that the delay and default on the part of An Garda Síochána is more difficult to comprehend where the applicant has been before the courts on a number of occasions in recent times and has been in custody awaiting trial for unrelated offences since 27 July 2020 in respect of an alleged assault and threats. Since 11 March 2021 the applicant has been serving a custodial sentence of nine months for assault causing harm. The applicant received a six-month sentence for criminal damage on 28 July 2020 and was remanded in custody with consent to bail in respect of a charge of threat to kill on 18 June 2020. The respondent in turn refers to this litany contained in para. 9 aforesaid as evidence that any breach of a right to anonymity is seriously diluted if not eliminated.
. In the affidavit of Sergeant Daly, the...
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